CASE NO.

: CC 118/96

THE STATE versus DR REINHARD EUGEN AUGUST STROWITZKI AND

BERND ALBERT BoCK

O'LINN, J

1996/08/19

JUDGMENT ON SENTENCE

CRIMINAL LAW AND PROCEDURE

RECUSAL OF PRESIDING TRIAL JUDGE

The basic requirements to succeed for a recusal application

based on the reasonable suspicion or perception of bias,
are:

1. Proof by the applicant at least on a balance of

probability of the facts relied on for the reasonable
suspicion of bias.

2. A reasonable suspicion of bias in the mind of the

applicant, objectively justifiable, which must be held
by the hypothetical reasonable, informed person and
based on reasonable grounds.

3. There is also a presumption of integrity and competence

in favour of judges.

4. The requirement of the proof of facts relied on for the

alleged reasonable suspicion, not satisfied when
allegations based on pure hearsay or double hearsay.

4.1 The allegation of a co-accused in an affidavit,

that presiding judge had promised him not to sent
him to prison on 130 charges of fraud, is so
farfetched and improbable, coming from a person
 who is a self-confessed liar of grotesque
proportions and in addition a person who himself
provided expert evidence that he had diminished
responsibility, that no weight could be given to
his allegations.

4.2 The application for recusal rejected as

misconceived and a gross abuse of process.
 CASE NO. CC 118/93

IN THE HIGH COURT OF NAMIBIA

In the matter between

THE STATE

versus

1. REINHARD EUGEN AUGUST STROWITZKI

2. BERND ALBERT BoCK

CORAM: O'LINN, J.

Heard on: 1996.07.16 & 17; 1996.08.05, 09 & 12;

Delivered on: 1996.08.19

JUDGMENT ON SENTENCE

O'LINN. J.: I will divide this judgment into three parts

as follows:

PART 1: INTRODUCTION.

PART 2 : THE APPLICATION FOR RECUSAL

PART 3 : THE SENTENCE.

PART 1 : INTRODUCTION

On Monday the 12th August 1996 after reading the papers and

hearing argument I dismissed the application on behalf of

accused no. 1 Strowitzki for my recusal and for the

declaration of criminal proceedings against accused 1 and 2

as null and void. The Court gave as the main reason for the

dismissal that the application is a gross abuse of Court

procedures and said that full reasons would be given later.

The hearing of argument on behalf of accused no. 2 regarding

sentence was .then proceeded with and thereafter the matter

was adjourned for sentence to Monday 19th August. After

adjourning the hearing for sentence, I also charged Mr

Geier, counsel for accused no. 1, with contempt of court and

adjourned this hearing also to 19th August, to be proceeded

with after sentence of the accused.

The parties will be referred hereinafter as follows:

Accused no. 1: Strowitzki; Accused no. 2: Bock; Counsel for

the State: Mr Small; Counsel for accused no. 1: Mr Geier;

Counsel for accused no. 2: Mr Botes.

PART 2: THE APPLICATION FOR RECUSAL.

A. The applicant in the recusal application is cited as

Strowitzki; respondent as the State; and Bock as a

party. In paragraph 4 of Strowitzki's founding

affidavit, he explains that Bock is cited "in so far as

this may be necessary as a result of the interest he

might have in the outcome of this matter." The outcome

referred to is the recusal and declaration that the

whole criminal proceedings, including the conviction of

both accused on 13 0 charges of Fraud amounting to

approximately 2.5 million Namibian dollars, be set

aside. Mr Geier alleged that before bringing the

application he had inter alia extensive discussions

with Mr Botes which was not denied by Mr Botes. Mr

Botes did not formally associate him and his client

with the application but neither did he disassociate

him and his client. Mr Botes apparently also advised

that the application be brought before sentence. Bock

is also the main witness on whom the application is

based. It is apparent therefore that although

Strowitzki is the applicant in name, both he and Bock

are the applicants in substance.

The relevant parts of the application are:

The notice of motion reads as follows:

"TAKE NOTICE that application will be made on

behalf of the abovenamed applicant on 9 August
1996 at 15h00 or as soon thereafter as counsel
may be heard for an order:

1. Granting leave to dispense with the forms

and service provided for by the Rules of
court and that this application be heard as
a matter of urgency.

2. For the recusal of His Lordship Mr B

O'Linn, the presiding judge in case no.
CC118/93.

3. Declaring the proceedings in the

abovementioned criminal matter conducted
under case number 118/93 as null and void
as a consequence.

4. For further and/or alternative relief.

TAKE NOTICE FURTHER that the affidavits of Dr R

E A Strowitzki and Bernd Albert Bock annexed
hereto will be used in support thereof.

TAKE NOTICE FURTHER that if you intend opposing

this application you are required:

(a) To notify applicant's counsel accordingly;

and

(b) within a time period agreed to by the

parties to file your answering affidavits
if any.

If no notice on intention to oppose be given or

 4

no answering affidavit be filed the application

will be moved as soon as possible after 15h00 on
9 August 1996.

Kindly place the matter on the roll for hearing

accordingly.

DATED AT WINDHOEK ON THIS DAY, 9 August 1996.

Signed : H GEIER
COUNSEL FOR APPLICANT/
ACCUSED NO. 1
(ON THE INSTRUCTIONS OF
THE LEGAL AID BOARD)"

The founding affidavit of Strowitzki reads as follows

"I, the undersigned,

DR REINHARD EUGEN AUGUST STROWITZKI

do hereby make oath and say that:

1. The contents hereof are within my own

personal knowledge save where otherwise
stated or as the context may otherwise
indicate.

2. I am an adult male, Accused no. 1 in the

criminal proceedings instituted under case
no. 118/93 against myself and another and
the Applicant herein.

3. The Respondent is the State cited herein in

its capacity as the prosecuting authority
care of the offices of the Prosecutor-
General, High Court Building, Windhoek,
Republic of Namibia.

4. Accused no. 2 is Bernd Albert Bock, an

adult male, co-Accused in the same criminal
proceedings and cited herein in so far as
this may be necessary as a result of the
interest he might have in the outcome of
this matter.

5. Subsequent to my arrest during April 1992

and the commencement of the trial
thereafter during September 1993 and
further protracted proceedings and at the
beginning of August 1995 certain
allegations came to my knowledge as a
result of the fact that the second accused,
Bernd Albert Bock narrated to myself
certain events which are set out in greater
detail in his supporting affidavit annexed
 5

hereto and from which it emerges that it is

alleged that the learned presiding judge
made certain promises to Accused no. 2's
mother and himself.

6. I was highly alarmed as a result of the

nature of these allegations as they implied
that the presiding judge, Mr Justice Brian
O'Linn had promised preferential treatment
to my co-Accused and that I would get
disadvantaged as a result.

7. As I was under cross-examination at that

stage of the trial and was of the view that
1 was not able to discuss this new aspect
of my trial with my counsel, I decided
immediately to do something about these
allegations made by Accused no. 1.

8. During the ensuing weekend I drafted a

document headed 'Urgent and direct
application of no confidence in the
presiding Judge Brian O'Linn by Accused no.
1' which is dated 7 August 1995 which I
also delivered at the Registrar's office on
7 August 1995 who affixed the wrong date
stamp thereto dated 4 August 1995. I annex
a copy thereof marked "A".

9. As a result of the service of this

document, an adjournment was necessitated
as the record shows during which my
intended application for the recusal of the
presiding judge was considered.

10. As Accused no. 2 was unwilling at that

stage to provide myself with a supporting
affidavit in this regard, it was decided
not to proceed with the intended
application for recusal then.

11. The trial thereafter commenced.

12. Subsequent to this development I remained

dissatisfied with the state of affairs
pertaining to my trial and as a result of
the serious averments made by Accused no.
2 continued to feel that the presiding
officer was not unbiased as far as my case
was concerned and that I was at a
disadvantage.

13. As a result, I decided on a further avenue

to voice my lingering concerns and
accordingly addressed a letter to the Judge
President of the High Court of Namibia
dated 15 February 19 96, a copy of which is
annexed hereto marked "B".

14 . I received a reply thereto from Mr Justice

, t

G J C Strydom, the said Judge President of

the High Court of Namibia dated 26 February
1996, a copy of which I annex hereto marked
"C" .

15. Subsequently Accused no. 2 and myself were

convicted and the bail of Accused no. 2 was
withdrawn and Accused no. 2 found himself
once again as an inmate of the Windhoek
Central Prison.

16. During his detention there he made no

secret of the fact that he was dissatisfied
with his conviction and repeated the
allegations to other fellow prisoners and
myself relating to the 'lift' and the
promise he had obtained from the presiding
judge and those concerning the telephone
conversation which apparently had taken
place between his mother and the judge
seized with our matter.

17. I took this opportunity to approach Accused

no. 2 once again and enquired whether he
would now be prepared to provide myself
with an affidavit confirming the true
nature of the averments made in this
regard.

18. Accused no. 2 agreed.

19. As a result of this I once again gave

instructions to counsel to bring an
application for the recusal of the
presiding judge.

20. On the basis of the history and the nature

of the averments made and the assurances
made by Accused no. 2 that his allegations
constitute the truth and which have now
confirmed and deposed to on affidavit I
cannot but harbour the suspicion that the
learned presiding judge is biased as a
result of the nature of the promises made
the Accused no. 2 and that I have therefore
been placed at a disadvantage and aver
therefore that my trial cannot in such
circumstances be fair.

21. I respectfully submit that this belief is

reasonable in the circumstances, I
accordingly pray that it may please the
above Honourable Court to grant an order in
terms of the prayers contained in the
Notice of Motion to which this affidavit is
annexed and to also grant the condonation
sought therein."
 7

Strowitzki referred in paragraphs 8, 13 and 14 to

certain Annexures "A", "B" and "C".

The only relevant allegations are contained in Annexure

"B", p. 1 and 2 in a so-called complaint by Strowitzki

to the Judge President:

"ii. I am since September 1993 Accused no. one

in the High Court case no. 118/93 on the
State versus Dr R E A Strowitzki and B A
Bock. Before September I was accused no.
two. The presiding judge is Judge O'Linn,
the prosecutor is Advocate Smal and for the
defence of Accused no. one Advocate Geier
and for Accused no. two Advocate Botes.
The acting interpreter is Mr Nolting.
During adjournments of the Court reported
Accused no. two Mr Bock repeatedly about
some telephonical conversations between
Judge O'Linn and the mother of Mr Bock, the
in the meantime late Mrs A M Bock and the
assurance given by the presiding Judge
O'Linn about the finalisation of the
criminal case for the son accused no. two
Mr B A Bock. Mr B A Bock, since 13 April
1993 free on bail, will get utmost a fine
was the assurance. The two advocates of
the defence and the interpreter as well
myself was listen to the reports in the
courtroom of the B-court in the High Court
Building."

Strowitzki further related that on one occasion when a

police constable fetched Strowitzki from the cells to

the High Court during a Court adjournment during

approximately August 1995, the said policeman told him

that he had seen his "co-accused Bock and judge O'Linn

together driving in the official car of judge O'Linn

but with my arrival in the courtroom I became

witness as my co-accused Mr Bock told just this

sightseeing tour event to the interpreter and the

present defence advocates Later explained Mr

 8

Bock in the lobby of the courtroom in details which

assurance judge O'Linn during the short car trip have

given to Mr Bock about the case which are still in

process."

Strowitzki attached the reply by the Judge President

dated 26/02/96 as Annexure "C". The relevant part is

in par. 2 thereof which reads as follows:

"2. Complaints re Judge:

These are serious allegations levelled at

a respected Judge and one who is known to
be impartial and objective. I have looked
at each and every one of the complaints.
All are based on hearsay or rumour. Your
own legal representative who, so it seems,
was apprised of all these instances did not
see his way clear to bring an application
for the recusal of the Judge. After all if
there was any substance in these stories it
would have been the duty of your legal
representative to investigate same, and if
satisfied, to bring an application to
Court. It seems that he declined to do so
and, in the circumstances, I am not going
to act on rumour and hearsay. May I again
reiterate that if there is any substance in
these stories, which I doubt, it will be
the duty of your legal representative to
investigate them, and if satisfied, to
bring an application to Court for the
recusal of the Judge."

The relevant part of the supporting affidavit of Bock

reads as follows:

"I, the undersigned,

BERND ALBERT B6CK

do hereby make oath and say that:

1. The contents hereof are within my own

personal knowledge save where otherwise
stated or as the context may otherwise
indicate.

I am an adult male inmate of Windhoek

Central Prison, co-Accused no. 2 in the
criminal proceedings instituted under case
no. 118/93 which is presently still
pending.

I have read the founding affidavit deposed

to by the Applicant herein and confirm the
contents in so far as it relates to myself.
In addition I wish to add the following:

3.1 On or about 13 April 1993 and after

detention of approximately 1 year, I
was released on bail on the following
conditions:

3.1.1. That an amount of N$200 000

be paid therefore;

3.1.2 That I would have to report

twice daily to the Windhoek
Central Police Station; and

3.1.3 That I was permitted to

leave the District of
Windhoek without the
requisite permission from
anybody.

3.2 Subsequent to my release but during

this trial, I became engaged to
Jacqualine Francisca Eberenz now Bock
on 28 September 1993.

3.3 During October 1993 I made use of my

privilege and travelled in the company
of my said fiancee to Otjiwarongo to
visit my mother, Anne-Marie Bock.

3.4 During this visit and in the presence

of my fiancee my mother informed me
that she had made a telephone call to
the presiding judge Mr Brian O'Linn
and had asked him:

'Brian listen, what are you going to

with my son.'

3.5 She apparently received the answer:

'Listen Anne-Marie I will not send

your son to prison.'

3.6 The informal nature of the

conversation between the presiding
judge and my mother is explained as a
result of the fact that they have
known each other for many years.
 10

3.7 I also refer in this regard to the

confirmatory affidavit by Jacqualine
Francisca Bock, nee Eberenz whom I
have since married and from whom I
have become divorced and wish to add
that a confirmatory affidavit by my
late mother has become impossible as
a result of her passing away on 11
September 1994.

3.8 During that time I also decided not to

mention this information to my co-
Accused the Applicant as this was an
aspect that quite clearly favoured
myself and as I was reassured that the
consequences of this trial would not
hit myself.

3.9 Subsequently and during the continued

trial proceedings either at the end of
July or at the beginning of August
1995 and during one of the lunch
adjournments I was on my way from my
residence back to court to attend the
afternoon session.

3.10 While I was in the process of walking,

a vehicle stopped and Mr Justice Brian
O'Linn offered a lift to myself to
court.

3.11 I accepted and during this trip I

enquired from him:

'What about our case'

3.12 The answer by the presiding judge was:

'Listen Bernie, I won't send you to

prison.'

3.13 Only then I informed Accused no. 1,

the Applicant herein of this
conversation and also of what my
mother had told me earlier.

3.14 The Applicant, Accused no. 1 herein,

reacted by bringing the 'application
of no confidence' referred to in the
founding papers and I confirm that I
was not willing at that stage to
jeopardise my position by making my
statement available to the applicant,
to further his interests.

3.15 As a result of this, the application

for recusal made during August 1995
was apparently not persisted with.

3.16 The trial continued and we were

 11

convicted on 15 July 1996 on which day

also my bail was withdrawn.

3.17 As a result of this situation, I have

at this stage languished in prison for
nearly 4 weeks already.

3.18 I was upset as a result of this

conviction and because of my continued
incarceration. In addition and
because of the arguments exchanged
during the post-conviction stage of
the trial I feared that I am now
facing a sentence of substantial
imprisonment contrary to the promises
made to my mother and myself.

3.19 I voiced this dissatisfaction in

prison and repeated there what
promises had been made to myself
during the car trip in question and to
my late mother.

3.2 0 I was approached subsequently once

again by the Applicant herein with the
request as to whether or not I would
be prepared to repeat these
allegations under 'oath. I agreed as
emerges herefrom."

The relevant part of the confirmatory affidavit of

Jacqualine Bock (nee Eberenz) reads as follows:

"I, the undersigned,

JACQUALINE FRANCISCA B6CK (NEE EBERENZ)

do hereby make oath and say that:

1. The contents hereof are within my own

personal knowledge save where otherwise
stated or as the context may otherwise
indicate.

2. I have read the founding papers and the

supporting affidavit deposed to by my ex
husband, Bernd Albert Bock and wish to
confirm its contents in so far as it
relates to myself."

In reply to the aforesaid notice of motion, the State

filed the following motion:

 12

"TAKE NOTICE that an application will be made on

behalf of the Respondent on 12 August 1996 at
09:00 or as soon thereafter as counsel may be
heard for an order:

1. Granting leave to dispense with the forms

and service provided for by the Rules of
court and that this application be heard as
a matter of urgency.

2. Striking out all averments in the

affidavits and other documents referring
to:

(a) Statements by the mother of accused 2

and what was allegedly said to her and
by her; and

(b) Statements allegedly made by the

Honourable presiding Judge Mr Justice
O'Linn to Accused 2 and his mother

filed by Applicant, which are scandalous,

vexatious, or irrelevant in so far as it
constitutes inadmissible hearsay by person
who are not parties and not called as
witnesses to prove the truth of the matters
stated therein;

3. Further and/or alternative relief."

The immediate prelude to the morning of the application

in open Court.

On 15 July 1996 I convicted both Strowitzki and Bock on

130 counts of Fraud totalling an amount of N$2 461 958.

The case was then postponed to 16th July for evidence

and argument on sentence. Evidence was then called in

regard to Strowitzki and subsequently argument

concluded in regard to both Strowitzki and Bock but, at

the request of counsel for Bock, leave was granted for

postponement to 17/07/96 to enable Mr Botes to decide

whether or not to call a psychiatrist Dr Maslowski in

mitigation to testify about Bock's alleged diminished

responsibility.
 13

On 17/07/96 a further indulgence was granted for

postponement to 05/08/96 on the application of Mr

Botes, to call Dr Maslowski.

On 05/08/96 Mr Botes again applied for a further

indulgence to postpone the matter to 09/08/96 to call

Dr Maslowski. This application was again granted.

Eventually on 09/08/96 Dr Maslowski testified. He was

cross-examined by Mr Geier as well as Mr Small.

The Court also put certain pertinent and critical

questions to Dr Maslowski to establish the relevance of

his findings and opinion in relation to the facts found

by the Court in its judgment on conviction.

2. Immediately after the conclusion of Maslowski's

evidence, but before any further argument could be

presented relating to the evidence of Dr Maslowski, Mr

Geier rose to inform me that he has received

instructions to bring another application.

He said: "That there would seem to be a possible basis

therefor, but until I have it in affidavit form and

have investigated this avenue properly, I will not

disclose this in open Court." He then asked to see me

in Chambers and I granted this request.

3. The crux of what happened in Chambers was subsequently

put on record in Court on the 12/08/96:

 14

"The way I remember the consultation is that

after Mr Geier indicated that he wanted to bring
an urgent application here in court, he also
asked that counsel see me in chambers. Arrived
in chambers, were present myself, Mr Geier, Mr
Botes and Mr Small. Mr Geier then said that he
intends to bring an application for my recusal
on the basis of perceived bias. I asked him on
more than one occasion whether he would tell me
what it is about. What is the allegation, and
he said on more than one occasion that he cannot
do that because he wanted to take the affidavits
and by doing so he would then deal with the
matter in the shortest and the cleanest way. I
also put to Mr Geier why at this stage, and why
cannot he bring any application for a special
entry or an appeal if he has any problem, if he
has any problem of any irregularity whatsoever.
Mr Geier did not say why not but insisted that
he would rather take his affidavits and bring
the matter to court. It was also pointed out to
Mr Geier by me that he would have all these
remedies and I indicated that I was not very
sympathetic at that stage to hear this
application at this late stage. Mr Geier
insisted that he would take his affidavits and
rather bring the application to court because
that would be the cleanest arid the shortest way.
I'm not dealing with what other counsel said,
you can add that if you think it's relevant.
Thereafter I waited from 15:00 to 16:30 for any
documents in the application and about 16:35 the
Court resumed to hear this application. Now as
to what happened in chambers, Mr Geier, is there
any corrections you want to suggest?
MR GEIER: Yes, the first thing that comes to my
mind, My Lord, immediately is the aspect where
Your Lordship pressed me to, with the question
why this application had to be brought at this
stage.
COURT: Yes.
MR GEIER: If my memory serves me correctly, I
indicated to Your Lordship that sentencing was
still outstanding and that there would be
aspects which needed addressing before that
because they could have a bearing on sentence.
I believe that is an important aspect that I
wish to place on record.
COURT: Yes, and is it correct at least that
I asked you to give me an indication of what the
allegation is and you refused?
MR GEIER: I indicated to Your Lordship that I
did not want to bring such an application until
I have such instructions in affidavit form. In
other words I was not going to bring such an
application lightly and only if armed with
affidavits. In other words with statements
under oath would I decide whether to proceed
with the application or not and therefore I
declined at that stage to disclose what the oral
 15

instructions had been."

Mr Botes and Mr Small agreed with the correctness of

what I placed on record.

4. After the meeting in Chambers, the Court hearing

resumed and I ordered the matter to stand down until

15:00 as requested by Mr Geier.

At 15:00 there was still no sign of the application and

only at approximately 16:30 Mr Geier handed me a copy

of the application.

5. I was extremely shocked by the allegation in the

application because I knew they were utterly false.

6. It was the first time that I became aware of the

complaint in Annexure "C" to Strowitzki's founding

affidavit and consequently enquired from the Judge

President about it. The Judge President confirmed that

he had never informed me of the allegations and told me

why.

I should pause here to point out that in the subsequent

hearing I invited Mr Geier to confirm this with the

Judge President but he refused. He eventually however

indicated that he could not controvert this fact.

7. The Court resumed its hearing about 16:45.

 16

When the hearing resumed, the media was well

represented at the hearing.

9. At the resumption the following exchanges took place:

"MR GEIER: My Lord, may I first just thank

the Court for the indulgence granted to settle
the papers.
COURT: Yes "

"COURT: Yes, well Mr Geier, I intend asking

for the police at high level to immediately
investigate these allegations and I can assure
you that every little bit of that is absolute
lies, good. Carry on.
MR GEIER: My Lord, may I (intervention)
COURT: Mr Geier, when you argued the matter
did you read the Court Judgment as far as Mr
Bock is concerned where I rejected his story of
being influenced. I gave the Judgment rejecting
all his excuses and you come to this Court as a
Counsel and you bring before this Court an
affidavit by Mr Bock that, from somebody in the
family that his dead mother talked to me and I
promised not to send him to jail, did you
investigate that, Mr Geier?
MR GEIER: My Lord, I rely merely on the basis of
the allegations deposed to.
COURT: But can you, Mr Geier, can you, didn't
you have to examine it, to investigate it, look
at the trial what happened, whether this man was
given favoured treatment?
MR GEIER: My Lord, the allegations are in
respect of sentence, we have not reached that
stage yet.
COURT: Well, I've given you now some
indication of what is the position, what you
should have considered, now carry on, Mr Geier.
MR GEIER: Yes, My Lord, just briefly when it
comes (intervention)
COURT: Mr Small, will you see to it that the
matter is immediately investigated at the
highest level by the police, all the allegations
by the applicants.
MR SMALL: Yes, My Lord, I will do that, My Lord,
and I can just indicate to Your Lordship, my
Learned Friend, unfortunately at this stage we
only received these documents a short while ago,
I'm still studying them and I can just indicate
it may happen that we will have to file
additional also affidavits in this regard.
COURT: I see.
MR SMALL: It may also be that after
consideration of the application that I will
move for an application to strike out certain
 17

parts of the affidavit so I'm just giving the

Court an (intervention)
COURT: Well there's two basic allegations,
one is supposed to be based on a dead woman what
somebody understood she meant, and the other one
what accused no. 2 has said.
MR SMALL: That is correct, that is correct,
yes. "

10. The hearing thereafter was adjourned until 09:00 on

12/08/96 .

11. On 12/08/96 the application was argued and after

argument the Court rejected the application as stated

supra.

D. DID THE APPLICANT MAKE OUT A CASE OF URGENCY?

I ruled at the outset that the notice of motion by the State

to strike out should be heard as an integral part of the

application as a whole.

1. The question of urgency.

1.1 There was no argument at all on the issue of

urgency.

1.2 The first prayer in the notice of motion was for

"leave to dispense with the forms and service

provided for by the Rules of court and this matter

be heard as a matter of urgency."

1.3 However there was no certificate of urgency by

counsel as required by Rules of court and no

 18

request for condoning this defect.

1.4 In the application itself there are no grounds set

out in support of the aforesaid prayer for

treating the application as one of urgency.

1.5 The facts relevant to urgency are either extremely

vague or inconsistent with any urgency. So for

example:

(a) Neither Strowitzki nor Bock says when Bock

consented to make an affidavit except that it

allegedly happened at or after conviction on

15th July 1996.

See par. 3.16 - 3.20 of Bock's affidavit,

supra.

(b) The two alleged events relied on took place

long before conviction, namely:

The so-called promise to Bock's mother more

than 4 years ago and the alleged promise to

Bock, in August 1995.

1.6 The reason for the urgency is patently absurd. It

amounts to this :

The conviction of both Strowitzki and Bock took

place on 15th July. In that conviction there was

not the slightest indication of Bock being

 19

preferred to Strowitzki; to the contrary, it was

found that the lies told by Bock, was to a

substantive degree of his own making and that his

excuse that he was even ordered by Strowitzki, was

rejected as either false or grossly exaggerated.

In the premises there could not be any substance

in any allegation that the conviction was unfair

in that I preferred Bock to Strowitzki. And as to

sentence, the best possible way of demonstrating

bias in the form of preference for Bock would be

in the judgment on sentence which was contemplated

for the day on which the recusal application was

brought or not later than the next Court day. If

there then was any indication of bias, an appeal

could be lodged or even a review or an application

for a special entry, even before another judge.

In such a case, the presiding judge in the trial,

would also have had the opportunity to reply on

affidavit, if need be to testify viva voce.

It would appear that both the accused had become

adept in the more than 4 years that have elapsed

since the arrest of the accused in the

requirements of a fair trial and how to abuse it.

There were about 4 applications or attempted

applications to quash the trial on the ground that

there could not be or would not be or was not a

fair trial. The present is the fifth attempt.

 20

It seems that they realised that by using the

procedure before sentence of application for

recusal, they could fabricate any lie against the

presiding judge, without any opportunity for

replying or without the risk of a repudiation by

the presiding judge, because should he reply -

they would then allege that he is now descending

into the arena and should for that additional

reason recuse himself.

The strong probability is that Strowitzki and Bock

realised that a substantial prison sentence for

both accused could be expected and then, as a last

straw, conspired to lie about the presiding judge,

just as they did in regard to Dr Herrigel and Mr

Brandt.

It was a notorious fact at the time that the

presiding judge was under tremendous pressure in

that he was also chairing the Judicial Commission

of Enquiry into Legislation for the more effective

combating of crime and was due to leave on the

very Monday, 12th August for a series of oral

hearings in Namibia countrywide.

Mr Geier's justification that an application such

as the present had to be brought at the earliest

possible moment is preposterous and devoid of any

sense.
 21

Firstly, there is no indication whatever in the

founding and supporting affidavits, that the

application was brought at the earliest possible

moment. Secondly, there was no sign whatever in

the trial itself, that Bock was being preferred

above Strowitzki.

Thirdly, the allegation about preferring

Strowitzki in inherently vague. If the suspected

preference was to the effect that I would and

could, notwithstanding what was said about Bock in

an open trial at the time of conviction, let Bock

off completely with a fine or a warning, then such

prospect is so inherently improbable that it could

only be the brainchild of a sick and distorted

mind.

It follows that the application could have been

rejected solely on the ground that no

justification was shown to treat the application

on the basis of urgency and to dispense with the

Rules.

E. MR GEIER AND HIS CLIENT'S BASIC MISCONCEPTION.

1. Mr Geier contended that all he had to prove was a

reasonable suspicion of bias on behalf of Strowitzki.

This according to him was not actual bias, but a

reasonable perception of bias. He did not address the

question of what is meant in law by the word

 22

"reasonable". As far as he was concerned, hearsay is

admissible and sufficient evidence. No facts need be

proved. • All that he needed was the fact that

allegations were made by Bock to his client Strowitzki,

even if the basis for those allegations by Bock is

again an allegation made by a dead person to Bock, i.e.

what is referred to in legal circles as "double

hearsay" . The truth of the allegations are not a

relevant or necessary issue. The credibility of the

person who made the allegations is also not relevant,

not even if that person or persons are self-confessed

liars of gross proportions or have been proved as such

in the same judicial proceedings. The probabilities on

the issue of the truth of the allegations are also

irrelevant because whether or not the allegations are

true, are itself irrelevant. The only relevant facts,

circumstances or event which need be considered in the

application,is that the applicant had harboured a

suspicion for a considerable time and then after

conviction, a disgruntled co-accused, now convicted and

facing a considerable period of imprisonment, was

willing to make an affidavit, confirming allegations

made in the past prior to his conviction.

Notwithstanding pertinent questions by the Court to

alert Mr Geier to the correct approach and all the

relevant considerations and facts to be considered, he

stuck to his guns undeterred.

Mr Geier apparently never considered, that should his

 23

approach be correct, it would mean that the Court would

be held hostage by any criminal or group of criminals

and that the administration of justice would become

impossible. This is accomplished merely by one

criminal saying that certain allegations of corruption

and bias on the side of the judge were made to him by

another criminal and that that other criminal confirms

it on affidavit, resulting in a reasonable suspicion of

bias. All criminal proceedings must then be aborted.

Mr Geier referred the Court to several decided cases.

In all these cases the need for the facts on which the

suspicion is based, to be proved by the applicant,

unless they are admitted or common cause, is clearly

stated. But Mr Geier had apparently not read that part

of these decisions. In any event, he never referred

the Court to those parts.

The decisions on which Mr Geier relied were the

following:

S v Dawid, 1991(1) SACR 375 (NmHC).

BTR Industries SA (Pty) Ltd v Metal and Allied Workers

Union, 1992(3) SALR, 673 AD at 690 D - 695 B.

S v Nhantsi, 1994(1) SA 26 (Tr) at 30 A - C, 31 D - E.

Moch v Nedtravel (Pty) Ltd, t/a American Express Travel

Service, 1996(3) SA 1 (AD) at 8 H - I and 9 A - G.

In the latter decision, the judgment in BTR Industries,

supra were followed. The Court, per Hefer, J.A. said:

1

24

"In that case this Court concluded that the

existence of a reasonable suspicion of bias
satisfies the test. It is accordingly incumbent
on every judge to recuse himself from any matter
in respect of which he is reasonably suspected
of bias towards or against one of the parties."

See page 8 H - I.

However, the Court later pointed out, in a passage not

referred to by Mr Geier, that:

"It will be noticed that her apprehension that

she might not get a fair and impartial hearing
allegedly arose from the strained relationship
between the presiding Judge and her attorney, as
well as from Fine AJ's alleged threat to 'get'
Levin. She obviously has to show that such a
relationship in fact existed and that the
alleged threat had indeed been uttered. Apart
from these factual requirements, it was for the
petitioner to satisfy the Court that the grounds
for her application were not frivolae causae,
South African Motor Acceptance Corporation
(Edms) Bpk v Oberholzer, 1974(4) SA 808 (T) at
812 C ad fin) , i.e. that they were legally
sufficient to justify the recusal of the
presiding Judge."

See report, supra, at p. 12, par. G - H.

In the BTR Industries decision supra, the test is

stated as follows:

"Did the Court a quo come to the correct

conclusion on the facts?

In seeking to apply the law to the facts there

must steadily be borne in mind that the cardinal
principle of our common law already mentioned:
The exceptio recusationis requires an objective
scrutiny of the evidence. The test to be
applied therefore involves the legal fiction of
the reasonable man - someone endowed with
ordinary intelligence, knowledge and common
sense. That the test presented is an objective
one, however, does not mean that the exceptio
recusationis is to be applied in vacuo, as it
were. The hypothetical reasonable man is to be
envisaged in the circumstances of the litigant
who raises the objection to the tribunal hearing
 25

the case. It is important, nevertheless, to

remember that the notion of the reasonable man
cannot vary according to the individual
idiosyncrasies or the superstitions or the
intelligence of particular litigant..

The facts have been set forth in some detail in

the earlier part of this judgment. With a view
to determining whether MAWU discharged the onus
of establishing a disqualifying bias, those
facts in my view represent a difficult
borderline case."

In the Australian High Court decision in Grassby v R,

it was held:

"The test which is to be applied when bias is

raised has been clearly laid down. It is
whether in all the circumstances the parties or
the public might entertain a reasonable
suspicion that the judge may not bring an
impartial and unprejudiced mind to the
resolution of the matter before him.

If so, then the judge ought not to

proceed to hear the matter. Of course, as
Gibbs, CJ pointed out in R v Simpson, the
mere expression of the apprehension of bias does
not establish that it is reasonably held, that
is a matter which must be determined
obj ectively." (My emphasis added) .

See 1991 LRC (Crim) Australia, 32 at 47 b.

In the decision of the High Court of Grenada in a

criminal case the Court of Appeal held that:

"the trial judge had correctly refused to

disqualify himself on the ground of bias on his
part, since no evidence had been put forward
that the judicial conscience had been disturbed.
The application on this ground had to be
rejected for lack of seriousness."

See report (1987) LRC (Const) 568 at 591 and 597

post.

In the New Zealand Court of Appeal decision in R v

Cullen, per Eichelbaum, CJ, it was said:

" • The informed objective bystander ....

would not form the opinion that there was a
reasonable suspicion of bias." (My emphasis
added).

See report [1993] 1 LRC 610 at 614.

In the Namibian decision in S v Dawid, supra, a

judgment by myself, I held that the test was a mixed

objective and subjective one but intended the same

approach as stated in the BTR Industries decision,

supra.

I also pointed out that there was a presumption of

integrity and competence in' favour of judges and

referred in this connection to the dictum in Rondalia

Versekerinqskorporasie v SA Bpk. v Lira, 1971(2) SA 586

(A) at 590 F - G.

I furthermore referred to S v Radebe, 1973(1) SA 796

(A) at 812 per Rumpff, A.J. to a similar effect. The

following passages need to be emphasised in the context

of this application:

"In S v Radebe 1973(1) SA 796 (A) at 812,

Rumpff, AJ, as he then was, approved of the
following passage from Gane's English
translation of Voet, as a correct statement of
the Roman Dutch law, and I quote:

'Trivial reasons insufficient for

recusation. - Otherwise however no favour
should be shown to trivial and foolish
reasons for suspicion, such as are now and
then found to be set up either in malice or
thoughtlessness. It seems that we should
rather believe that those who are bound by
 27

a sworn and tested loyalty, and have been

raised to the function of judging for their
eminent industry and dignity, will not so
readily and for such slender causes depart
from the straight path of justice and give
judgment in defiance of their own inner
sense of duty.'

Mr Justice Rumpff continued as follows:

'Regspleging geskied by ons (soos in alle

beskaafde lande) in die openbaar, met
sekere noodsaaklike uitsonderings en met
die oog op die algemene vertroue wat in the
regspleging behoort te bestaan, is
onpartydigheid van die Regter nie net van
belang vir 'n party wat in die saak
betrokke is nie, maar ook an algemene
belang. Op grond hiervan behoort myns
insiens 'n Regter nie 'n saak te verhoor
nie wanneer dit gese kan word dat daar
omstandighede is waardeur die regtelike
onpartydigheid, in die algemeen, wesenlik
benadeel sou kon word, en dit is die taak
van die Regter self, in elke konkrete
geval, om te oordeel of die omstandighede
van so 'n aard is dat daardie benadeling
sou kon gebeur. Wat die onderhawige saak
betref, is dit van algemene belang dat 'n
Regter by die aanvaarding van sy amp ' n eed
afle dat hy aan alle persone op gelyke voet
reg sal laat geskied sonder vrees,
begunstiging of vooroordeel. Na my mening
strek die vereiste van vreesloosheid van 'n
Regter oor die hele gebied van sy ampswerk.
Hy behoort vreesloos te wees vir
driegemente voor of gedurende die verhoor
van 'n saak en ook vreesloos oor die
konsekwensies van sy uitspraak. Dit is
myns insiens ook van die grootste belang
vir die regspleging self dat 'n Regter toon
dat hy vreesloos is omdat anders die
vertroue in die regspleging ernstig
ondermyn sou word en die regspleging self
verydel mag word. Aan die ander kant
spreek dit vanself dat wanneer dit uit
omstandighede in 'n saak sou blyk dat 'n
Regter weens vrees wel sy onpartydigheid
prysgegee het, hy nie bevoeg sou wees om
die saak te verhoor nie'."

Lastly I referred to the South African decision of the

Appellate Division in R v Silber, dealing with contempt

of Court by a lawyer where it was said:

 28

"In his argument before this court the

appellant's counsel rightly refrained from
contending that any of the grounds for recusal
advanced by the appellant had any substance
whatsoever. But he argued that even if no
reasonable person could have thought that the
reasons advanced by the appellant furnished the
slightest foundation for an application for
recusal on the ground of bias, nevertheless, if
there was a reasonable possibility that the
appellant was so stupid as to suppose that the
reasons were sufficient, he was not properly
committed by the magistrate. It is, of course,
necessary to distinguish between mere stupid
behaviour and conduct that is wilfully
insulting. But the circumstances must be borne
in mind. The appellant was not a layman or a
lawyer of little experience in the courts. His
application was not made on the spur of the
moment but, as his quotation of extracts from a
judgment shows, was prepared beforehand by him.
The case was not like those in which a lawyer
had been guilty of shouting at witnesses
(Benson's case, supra) or of an unpremeditated
piece of discourtesy (R v Rosenstein, 1943 TPD
65) , where the fact that the party has been
given an opportunity to amend his conduct and
has refused to do so may be of the greatest
importance. Here the appellant acted
deliberately in advancing his preposterous
arguments. It is, of course, true that
groundless, even ridiculous, arguments may be
addressed to a court without their reflecting on
the good faith of those propounding them. But
this was no ordinary argument. The appellant
knew that he was going to make, in open court,
the grossly insulting charge that the magistrate
had been conducting the case unfairly towards
the accused and was therefore unfit to continue
to try the case. I cannot believe that the
appellant may honestly have thought that the
futile grounds advanced by him could justify his
asking the magistrate to recuse himself, or that
there was the remotest chance of the
magistrate's doing so.

Why then, one asks oneself, did he make the

application? The explanation of his conduct is
certainly not obvious. Perhaps his vanity had
been hurt because his objections, despite his
strenuous arguments, had been so regularly
overruled, and he might have been aiming at
restoring his self-esteem and possibly his
position in the eyes of the public by a daring
attack on the magistrate. Another possibility
is that he felt that the case was going against
his client and hoped to intimidate the
magistrate or, perhaps, to drive him into
committing some irregularity of which use might
be made on appeal. The appellant's counsel
 29

submitted that so long as he was aiming at the

advancement of his client's cause he could not
be guilty of wilfully insulting the magistrate.
I do not agree. It may seem to a practitioner,
in a • seriously misguided moment, that his
client's cause may be advanced if he wilfully
insults the court, but this ultimate sense of
duty to his client will not excuse him if his
immediate intention was to insult the court. I
do not think that the reasonable possibilities
admit of any more favourable estimate of the
appellant's behaviour than that he had not
consciously worked out a plan to insult the
magistrate but that, irritated by the lack of
success of his objections, he (adapting the
language of Lord ESHER in Royal Aquarium and
Summer and Winter Gardens Society, Limited v
Parkinson, 1892(1) QB 431 at p. 444) allowed his
mind to fall into such a state of unreasoning
hostility towards the magistrate that he was
reckless whether the charge of bias had the
slightest foundation or not. And if that was
the position then, too, in my opinion he was
wilfully insulting the magistrate."

See report, 1952(2) SA 475 (A)" at 483 D - 484 E.

It was pointed out to Mr Geier during his argument that

in the decision in S v Dawid, the trial judge raised

the point and set out the facts which were therefore

not in dispute at all.

Similarly in the Transkei decision, S v Nhantsi, supra,

all the facts relied on were common cause.

When Mr Geier was asked by the Court whether he could

find any decision which was on par with the facts in

the instant case, he referred to S v Nhantsi, and

pointed out that in Nhantsi it was a ground of recusal

that the presiding judicial officer drove in the same

vehicle with the complainant.

 30

This trip was only one of seven grounds relied on, all

of which were common cause. The trip in the Nhantsi

case was 95km. In this case there is no indication of

the distance and duration of the trip except that it

was short.

From the aforesaid decisions it is crystal clear that

there are two basic requirements for a recusal

application to succeed:

1. Proof by the applicant at least on a balance of

probability of the facts relied on for the

reasonable suspicion of bias.

2. A reasonable suspicion of" bias in the mind of the

applicant, objectively justifiable, which must be

held by the hypothetical reasonable, informed

person and based on reasonable grounds.

F. What are the facts relied on by the applicant and have

they been proved on a balance of probability?

1. The first alleged fact in the affidavits of Bock and

Mrs Bock, nee Eberenz, is that the deceased mother of

Bock telephoned the presiding judge some time prior to

October 1993 and asked him: "Brian listen, what are you

going to do with my son?" and the presiding judge

replied: "Listen Anne-Marie I will not send your son to

prison."

This allegation was allegedly made to Bock by his

mother on some occasion in October 1993.

 31

It is pure hearsay and inadmissible as proof of the

alleged promise to the mother of Bock and could

therefore not be relied on as a fact on which the

alleged reasonable suspicion could be based.

2. The second and only other alleged fact is also

contained in the affidavit of Bock 3.9 - 3.12 and is to

the following effect:

In July/August the presiding judge gave Bock a lift to

Court whilst the judge was driving towards Court and

Bock was walking on his way to Court.

Bock allegedly enquired from the judge: "What about our

case", and the judge replied: "Listen Bernie, I won't

send you to prison."

In argument Mr Geier,for Bock made it clear that, as in

the case of the first fact supra, he was not relying on

the truth of the allegation but on the perception in

the mind of Bock created by the fact that Bock made

this allegation to the applicant Strowitzki.

However, insofar as the truth may be relevant, the

following points must be made:

2.1 Subsequent to the alleged "trip" and conversation,

Bock was in fact found guilty on 13 0 charges of

Fraud, amounting to over N$2,5 million, committed

over a period of 8 months, where he was the inside

 32

person, in a position of trust abused by him. In

the judgment the Court found that he was a self-

confessed liar, that he persisted in his lies for

a long period and that his evidence that he was

instructed by Strowitzki, or strongly influenced

by Strowitzki to tell these lies, was rejected as

false or at least grossly exaggerated. Eventually

the only excuse of Bock for his grotesque lies was

that he would have done anything to get out of

jail and that he himself repudiated these lies

once he was out on bail and removed from the

influence of Strowitzki. The statement made to

the police and admitted by him was about the

Minister of Finance, Dr Herrigel, who allegedly

was involved in a scam, i.e. corrupt dealings

involving N$62 million. It was common cause

between Bock and the State at the trial that these

allegations against innocent and respected persons

holding high office were totally false.

The Courts attitude towards Bock at the stage of

conviction clearly shows not the slightest

indication of a promise to give Bock preferential

treatment. Mr Geier refused in his argument to

concede that there was not the slightest sign of

preferential treatment of Bock in the aforesaid

judgment. It is therefore necessary for the

purpose of this judgment to repeat some of the

passages from the judgment delivered on

15/07/1996 :
 33

"In this interview Bock did not claim to

have acted bona fide and without knowing of
any fraud or theft.

The amount of R2 641 000 stated by him as

the amount he was allowed to misappropriate
was probably a reference to the amount
alleged by the State to have been
misappropriated by him and Strowitzki
namely R2 461 958 but where Bock
inadvertently used the figures 641 instead
of 461.

Some of the important features of this

interview were:

(i) Bock admitted that he misappropriated

Government money in the amount of R2
641 000 in accordance with
instructions from one of the three
alleged Government principals who took
out R64 million of Government money
from the account of the Receiver of
Revenue in Windhoek.

(ii) Bock did not mention Strowitzki's name

or role.

(iii) Bock assured the reporter that

what he was telling the reporter
would be part of his evidence
the next year in the High Court.

6.7 This was however not the end of Bock's

efforts to deceive the police, the
Court and the public with monstrous
lies.

When he appeared in the magistrate's

court for bail on 1st April, 1993 he
persisted with his lies in stating
under oath:

"I was working for my salary and

I got instructions from the
Minister of Finance to have A2
(then Strowitzki) as an agent."

6.8 It was alleged by Bock in his evidence

in this Court and admitted by van
Vuuren that Bock did admit to him
after his release on bail and before
the commencement of the trial in the
High Court, that his allegations in
his written statement to van Vuuren
and in his interview with the reporter
were fabrications originating from
Strowitzki "
 34

"1. The State has inter alia placed

considerable emphasis on the false
defences raised by Bock during the
bail applications, in his two
voluntary statements to the police and
in his admitted interview with the
Windhoek Advertiser. As already
pointed out supra, the lies told by
Bock continued over the period
September, 1992 to at least April,
1993. I have also analysed supra how
he obviously cooperated with
Strowitzki in a joint conspiracy of
deception, in which they in
desperation, made the most outrageous
allegations, incriminating prominent
but innocent public figures, such as
Dr Herrigel, the former Minister of
Finance and Mr Brandt, the State
Attorney. Some time after being
released on bail, Bock admitted that
these allegations were all lies but
Strowitzki persisted until the end.
This Court however found in the
judgment on Strowitzki supra that
these allegations were in fact false.
Bock admitted not only that they were
false, but he knew'of its falsehood at
the time when he made it. His excuse
was that he was under the influence of
Strowitzki and would have done
anything to be released on bail. Mr
Botes on his behalf also put forward
this excuse in argument.

The said excuse is not credible and

does not explain Bock's conduct. It
also does not help Bock to avoid the
inferences that can and should be
drawn from Bock's conduct after
arrest. The following points must be
made:

(i) The lies told by Bock were not

little white lies, they were
gross and atrocious, deliberate
and reckless, whether or not
they destroyed the reputation of
important and innocent public
figures, such as Dr Herrigel and
Mr Brandt.

(ii) Bock blamed Dr Strowitzki for

his scandalous conduct. First
he testified that Strowitzki
instructed him, but under cross-
examination he admitted that
Strowitzki at most advised him
and provided him with some
information, that he was
 35

aggressive at one stage against

Strowitzki apparently because
Strowitzki did not produce the
required or promised statement
or because Strowitzki's
statement did not come up to
expectations. Bock however
remained vague, evasive and
unconvincing on this issue as on
all others, in examination-in-
chief as well as under cross-
examination. The fact is that
when he alleged in his two
statements to the police and in
his last bail application in
April, 1993 where he alleged
that Dr Herrigel had given him
the instructions, he knew that
he was lying and that he himself
was the author of those
allegations.

Bock, as pointed out supra,

struck out on his own. Just as
Strowitzki did not mention Bock
in his proposed written
agreement with van Vuuren, so
Bock did not'mention Strowitzki
in his statements to the police
and the interview with the
newspaper. He placed himself in
the foreground as a principal.

(iii) He made a damning admission, if

not a confession, in his
interview with the newspaper,
where he explained that he was
allowed to misappropriate the
amount claimed by the State, by
Dr Herrigel. Here he did not
claim ignorance of illegality.
He made this statement in the
context of allegations of
alleged misappropriation by Dr
Herrigel and two others of R62
million.

(iv) He apparently was determined at

that time, to tell this false
story in Court.

(v) He committed perjury when he

continued to allege, this time
under oath in Court proceedings
in April, 1993, that he acted on
instructions of Dr Herrigel that
Dr Herrigel had told him that he
had appointed Bock as his agent.
 36

(vi) In his first statement to the

police he told at least 19
deliberate lies and added one in
the second statement four (4)
days later.

(vii) He changed his various false

defences as the realization
dawned that the previous false
defences, could never succeed.

(viii) He says that he would have done

anything to get out of prison
because of conditions there.
Later in the trial he conceded
that he at least benefitted in
that he lost a lot of weight."

See unreported judgment 15/07/1996, p. 36

- 37, 71 - 74.

2.2 The further significant event during the trial

foreshadowed for a considerable period, was the

evidence of the psychiatrist Dr Maslowski,

immediately before the application for my recusal,

in which Mr Botes on behalf of Bock and obviously

with the consent and on the instructions of Bock,

in the presence of Mr Geier and his client

Strowitzki, attempted to establish that Bock was

a person with diminished responsibility because,

as a consequence of severe damage to the frontal

lobe of his brain, incurred in an accident, he has

a personality disorder, would be more prone to

criminal influence, would be more prone to commit

crime, would have diminished moral values,

standards and conscience, would have moods of

euphoria, would talk big etc. It is obvious also,

as conceded by his counsel on his behalf, that he

would be prone to lying. Bock on his own defence

 37

evidence, was therefore a sick person.

3. To Mr Geier, these events in the trial are not of any

relevance or weight. Of course, these events are

crucial for any reasonable person and the Court having

to consider the credibility of any statement made by

Bock. To Mr Geier and his client the only event of

importance is that Bock was willing to make the

allegations concerning the judge in an affidavit.

4. The probability on the question whether truth or

fiction, were also irrelevant and of no weight to Mr

Geier and his client but again of course, the

probabilities are important to decide whether the

alleged facts were proved by applicant and also to the

so-called reasonable man, evaluating the facts to

decide whether there is a suspicion of bias and if so,

is it a reasonable suspicion based on proved facts.

4.1 The whole reason for Bock making his affidavit is

that he realised as from the conviction stage that

he could expect a substantial period of

imprisonment, that there would not therefore be

any preference accorded to him compared to

Strowitzki when imposing sentence. But although

according to Bock the events at the trial made

this clear to him, reasonable suspicion of

preference of Bock over Strowitzki remains the

credo of Strowitzki, as put forward also by his

advocate Mr Geier, although the only basis for

 38

their contention is the affidavit of Bock in which

he says he realised that there will be no

preference.

4.2 The fact that Bock's motive now is that he will

not be preferred as allegedly promised, and now

must find some other fraudulent scheme with

Strowitzki of preventing the infliction of

punishment on them, apparently never crossed the

mind of Advocate Geier, not even to speak of his

client, who was involved with Bock in massive and

continuous fraud, in atrocious lies and schemes to

attempt to frustrate justice. But the probability

of again resorting to fraud and perjury for the

same purpose, once he was again incarcerated with

Strowitzki, would be apparent to any reasonable

person, to the informed person in the street and

to the Court, but apparently not to Strowitzki and

his counsel.

4.3 Mr Geier also relied on the principle underlying

recusal applications that justice must not only be

done, but be seen to be done. Another principle

in fair trial issues referred to in the judgment

in this case on 15/07/96 and also referred to by

Mr Geier in his argument before conviction, is the

requirement expressed in other constitutions but

implied in the Namibian Constitution, regarding

primarily the exclusion of evidence irregularly

obtained which is mutatis mutandis applicable to

the present application namely whether or not,

regard being had to all the circumstances, the

administration of justice will be brought into

disrepute.

On the latter issue the following passage from the

judgment of Seaton, J.A. in the Canadian case of

R v Collins were referred to with approval in my

judgment:

"Disrepute in whose eyes? That which would

bring the administration of justice into
disrepute in the eyes of a policeman might
be the precise action that would be highly
regarded in the eyes of a law teacher. I
do not think that we are to look at this
matter through the eyes of a policeman or
a law teacher, or a judge for that matter.
I think that it is the community at large,
including the policeman and the law teacher
and the judge, through whose eyes we are to
see this question. It follows, and I do
not think this is a disadvantage to the
suggestion, that there will be a gradual
shifting. I expect that there will be a
trend away from admission of improperly
obtained evidence ... I do not suggest that
the courts should respond to public clamour
or opinion polls. I do suggest that the
views of the community at large, developed
by concerned and thinking citizens, ought
to guide the courts when they are
Questioning whether or not the admission of
evidence would bring the administration of
justice into disrepute."

The principle that justice must not only be done

but must be seen to be done as well as the test in

recusation applications of the perception of the

hypothetical reasonable person, the so-called

"man" in the street, informed but without any

special idiosyncrasies, give the reaction of the

 40

society to the present application some measure of

relevance.

It seems that informed opinion reacted with shock

and disgust.

I refer to the following reactions as mere

examples of the perception of the law-abiding,

informed citizens as expressed in:

The Windhoek Observer of August 10 and August 17

and the Republikein in its leading article of 14th

August.

I take judicial notice of the aforesaid

newspapers. Their existence and publication and

circulation are notorious facts in Namibia.

The heading in the Windhoek Observer on p. 1 in

large letters was:

"O'LINN HEARS HE'S BIASED".

The subheading is:

"Swindlers demand judge's recusal".

The heading on p. 2 is: "Shock move: Recusal

demand." The subheading is: "Just prior to

sentence a new delaying tactic." Another heading

on the same page: "Gross liars, says Mr Justice

O'Linn."
 41

The editorial comment on p. 6 under the heading:

"Adept at dawdling, temporising and thwarting the

end of justice", reads as follows:

"Criminals have no difficulty in playing

cat and mouse with the lawcourts and the
game is one which they have mastered
perfectly, making of themselves adept and
effective impediments to the execution of
court work. To temporise and to dawdle, to
secure postponement after postponement,
dragging a trial out even as long as five
years, are the instruments and aids they
have begun to use with such positive
results for them.

That collectively they cost the State

millions annually does not occur to them,
and should it, they are delighted. How
these delaying tactics erode the
administration of justice is another matter
of total indifference to them for how on
earth can a trial be totally fair and open
if years have lapsed before finally the
salient aspects are placed before the
presiding officer?

Reinhard Strowitzki and Bernd Bock are

swindlers. They were on trial over the
past four years for close to 8 0 days. A
vast sum of money was expended on them,
derived from the State's coffers. It is
safe to say that the costs are much higher
than the 2 400 000 dollars they
fraudulently obtained.

But on the day that they had to be

sentenced they asked for the recusal of Mr
Justice Bryan O'Linn on the grounds that he
was biased towards them. Dwarfing this
impudence, is that counsel for Strowitzki,
Mr Harald Geier, appears to have eagerly
embraced this insolent demand of recusal,
condoning their challenge instead of
advising them properly. They had years in
which they could have asked for recusal but
they waited till the last minute. And
counsel appears to do nothing about it.

Ours is the land of the bandit, the loafer

and the destroyer. The sustenance of these
evils is the ham-fisted government we have
and law systems and court practices which
cushion the bandit and the thug and which
are not the stronghold of the law-abiding.
The latter has no dignity and rights; the
 42

bandit, yes, he has dignity and limitless

rights.

Mr Geier, what we saw in the high court

yesterday is compelling us to speak
directly to you. Sir, you are being paid
by the government and the government gets
its money from tax resources. You spoke of
a very serious matter when approached by
some of us newsmen.

On the contrary, Mr Geier.

What we observed does not belong in a

lawcourt. It belongs to the arena of the
buffoon, the clown and the jester. It
sickened us, as an example, to observe the
laughing swindlers Bock and Strowitzki.
Your clients, Mr Geier, belong behind bars.
The trial has reached its climax and peaked
out as a farce.

That's justice in our country."

In the Windhoek Observer August 17, the editorial

comment on p. 6 was:

"One of the more revolting events ever to

take place within the otherwise austere
confines of the Namibian high court, was
the Strowitzki-Bock circus. The farce was
compounded by the support these two
swindlers enjoyed from their counsel, Mr
Harald Geier, who, whatever his merits and
his professional qualities, has caused
himself untold harm.

He should have told Reinhard Strowitzki who

was supported by the pathetic Bock that he
could not associate himself with the
outrageous recusal application.

To those acquainted with what had happened,

Strowitzki and Bock were convicted on 13 0
charges of fraud in that they appropriated
close to 2 500 000 dollars of government
funds in the department of customs and
excise through forged fuel levies.

They were arrested 5 2 months ago, and they

began a cat and mouse game with the
lawcourts. They got away with it. The
State footed most of the bill for their
defence, and after conviction and on the
very day that they had to be sentenced,
 43

Strowitzki made another application for

recusal of Mr Justice Bryan O'Linn on the
grounds that the judge was biased.

Bernd Bock then came forward in support of

Strowitzki by narrating and later stating
under oath that the most farcical tale in
an attempt to sully the name of Mr Justice
O'Linn. The judge, according to Bock who
has been branded by the trial court as an
atrocious liar, had told him that he would
not be sent to prison! Bock's mother,
according to Bernd Bock, was also on the
telephone with Mr Justice O'Linn and the
judge, according to Mrs Bock's lying son,
told her too that her son would not go to
prison!

She could not be called upon to dismiss or

support the story told by her son for she
died in September 1994.

Let the country know that this newspaper is

steeped in high court matters. The judges
of the Namibian high court, without
exception, are people of the highest
quality, meticulous and fair in what they
do and every citizen can take heart in the
fact that the high court is one of the last
refuges left to those seeking relief from
what they consider unfair treatment, and
those on trial for criminal offences can
likewise be assured of fair hearings and of
judgments strictly within the confines of
the dictates of the law.

The Strowitzki-Bock circus underlines that

this is the era of the clown, the criminal,
the loafer and all those useless and
unsavoury elements burdening society.

That men who implicated the Head of State,

Dr Sam Nujoma, in an imaginary scam
involving 64 000 000 dollars in government
monies and with Mr Nujoma, the then
minister of finance, Dr Otto Herrigel, is
a desperate final bid to defer sentence
come up with yet another tale sucked from
their thumbs, is evidence of the absurd
heights to which unbridled liberties and
human rights can take us if these
prerogatives are not linked to
accountability and responsibility.

Even more disturbing is that an advocate,

a legal practitioner enrolled with the high
court, supported the two swindlers by
filing the application for recusal. Mr
Geier, did four years fail to introduce you
to a character like Strowitzki?
>

44

Did you ever ask him for documentary proof

of his claim to a doctorate? That you went
ahead with the bid for recusal Mr Geier, is
the crux of the circus in the high court
when the two swindlers had to be sentenced.

The country's law-abiding citizens, and

those possessed of dignity and self-
respect, are aghast."

The Republikein in its editorial comment on

14/08/96, p. 4 under the heading: "O'LINN-HERRIE"

had this to say:

"Regter Brian O'Linn se besluit om horn nie

aan die veroordeelde Reinhard Strowitzki en
Bernd Albert Bock se verhoor to onttrek
nie, moet wyd verwelkom word, want by
besluit verteenwoordig meer as wat dit op
die oog af mag voorkom.

Die herrie rondom een van die mees senior

en gerespekteerde regters van hierdie land
het gekom in 'n stadium waar Namibie juis
nie hierdie soort van ding kan bekostig
nie. Dat regter O'Linn van eensydigheid
beskuldig word in 'n saak waarin die
beskuldigdes reeds veroordeel is, is al
klaar verregaande. Dat hy boonop nog
beloftes van versagting aan een van die
beskuldigdes sou gemaak het, klink nie na
die regter O'Linn waaraan die Namibiese
gemeenskap gewoond geraak het nie.

Regter O'Linn het tot voor die debakel 'n

vlekkelose rekord in die regskringe van
Namibie gehad. Dat hy na al sy jare van
ondervinding, onpartydigheid en
geregtigheid nou beloftes aan 'n
beskuldigde en veroordeelde se ma sou maak
om haar seun uit die tronk te hou, klink
ook nie na die regter O'Linn wat 'n lang
loopbaan juis 'n rekord van diens aan die
land opgebou het nie.

Dit klink eerder soos die tipe van gedrag

wat Namibiers die afgelope jare van die
twee veroordeeldes gewoond geraak het.

Dat die veroordeelde Strowitzki en Bock se

saak 'n toetssaak vir die regter was, blyk
nou duidelik. Daardie toets was nie net
een om van die 'partydige regter' ontslae
te raak nie, maar was ook 'n deeglike toets
 45

van regter Brian O'Linn se integriteit.

Dit was ook 'n toets vir die regstelsel van
hierdie land en een waarin bewys sou moes
word dat 'n man soos regter O'Linn
onwrikbaar glo aan dit wat hy doen en
waaraan hy glo. Eerbaarheid het op die
tafel beland en toe regter O'Linn die
aansoek vir sy onttrekking van die hand
gewys het, moes die land kennis geneem het
daarvan dat hy een van 'n handvol Namibiers
is wat nog bereid is om in die naam van reg
en geregtigheid alles van die tafel vee
totdat net gelykmatigheid en eerbaarheid
oorgebly het.

Die woord egtheid het vandeesweek in die

proses 'n hele paar keer op daardie tafel
van geregtigheid beland en dit staan in
skrille kontras met die twee veroordeeldes.
Adv. O'Linn het sy lewe gewy aan reg en
geregtigheid. Hy het 'n lang rekord van
hoe hy deur meer as een bewind van die dag
verwerp is, maar die een aspek wat juis
soos 'n goue draad deur sy lewe loop, is sy
toegewydheid aan dit waaraan hy glo. Dat
twee veroordeeldes wat skuldig bevind is
aan 13 0 klagte van diefstal van staatsgeld
hom aan hierdie toetssaak moes onderwerp,
is weersinwekkend.

Dat regter O'Linn die vuurdoop deurstaan

het, is 'n baksteen in the fondament van
geregtigheid in Namibie. *"

Dit gee hoop."

See also: The Windhoek Observer, August 17,

p. 7.

4.4 The possibility considering the evidence, that a

presiding judge, of my seniority, experience,

independence and integrity as perceived by the

informed member of the public or hypothetical

reasonable person, would have promised a person

like Bock with such serious charges against him

and such damning evidence supporting the charges,

that he will not be sent to prison, would be

rejected with contempt as incredulous.

 46

G. It follows from "F" supra that there could be no

reasonable suspicion of bias established.

H. There are many more reasons that could be given, but

those set out supra, would suffice for rejecting the

application for my recusal as misconceived and a grave

abuse of process.

PART 3: THE SENTENCE.

I can now at last proceed with the sentence.

It is trite law as Mr Botes has submitted, that the Court

must consider the personal circumstances of the accused, the

crime committed and the interests of society. The Court

must keep in mind the aims of punishment, namely deterrence,

retribution and rehabilitation.

I am first going to set out the facts and circumstances

which apply to both accused:

I. They have committed very serious crimes, namely 13 0

counts of Fraud, involving an amount of N$2 461 958.60.

2. Although both accused have only been convicted once in

Namibia, i.e. on 15/07/96 on these charges, they

committed the 13 0 counts of Fraud over a period of

eight months and on each count they formed the

necessary intention again and made several but similar

misrepresentations repeatedly.
Although these crimes were committed in the execution

of one scheme, and they were convicted on one occasion

of all 13 0 crimes, the accused were in substance no

longer first offenders when they committed the second

count of Fraud. When they committed the 13 0th crime,

they had already committed 129 similar previous crimes.

This was not a case where, the accused stopped of their

own volition. Their crimes were only stopped by police

intervention. Mr Small is correct to contend that it

must be assumed that were they not found out, these

crimes would have continued indefinitely with a real

risk of the State losing many more millions of

taxpayer's money, needed for the upliftment of and

maintenance of Government and society during a period

of increasingly scarce financial resources.

The crimes involved fraud and corruption which are

prevalent and escalating crimes.

There is still a loss of N$250 000 of taxpayer's money

not recovered from the accused.

The system of control at the Diesel Refund Department

of the Department of Finance was inadequate and

constituted a temptation for the unscrupulous.

There was no remorse or regret shown by the accused.

To the contrary, they both continued with unscrupulous

lies of the greatest gravity and in order to ensure

 48

their acquittal, they were willing to use any means,

including perjury, defamation and injuria of innocent

and prominent personalities in society, of the gravest

nature.

They have shown themselves as criminals without

conscience.

I will now deal with facts and circumstances which differ:

STROWITZKI:

1. He is 42 years old, single, with one son. He is a

Doctor of Economics and has taken courses in criminal

law and procedure at university.

2. He is not a Namibian citizen.

3. He has been in prison for more than four years since

arrest. During his time in prison he concocted false

defences. After the first four months, he was given a

single cell at his request. This did not amount to

solitary confinement.

He enjoyed the privileges of an awaiting trial prisoner

as compared to a convicted and sentenced prisoner.

Except for concocting his false defences and lies in

prison, he otherwise behaved himself in prison.

I

49

A great part of his long pre-conviction incarceration

and the drawn-out trial was due to his own conduct and

raising patently false defences, putting in issue many

points that could have been admitted and by his several

attempts to abort the trial on the alleged ground that

he either could not have or did not have or would not

have a fair trial.

4. The State financed his defence by Adv. Geier from

taxpayer's money amounting to tens of thousands of

Namibian dollars.

B6CK:

1. He is 45 years old, divorced.

2. He is a Namibian citizen.

3. He has some university education and with normal

intelligence.

4. He was in a position of trust with the Department of

Finance and used this position to steal and defraud.

5. He was detained for one year in prison awaiting trial

before release on bail. After being released on bail

he was subject to restrictions preventing him from

normal activities.

He at least confessed to some of his most atrocious

 lies regarding his defence and the defamation and

injuria of Dr Herrigel and others. His defence during

the trial was now reduced to basically one issue.

Not more than one third of the time in the trial was

used on his defence.

7. His defence was financed by himself and not from

taxpayer's money.

8. I accept as a reasonable possibility that he is a

person with diminished responsibility as a result of an

accident. He has a personality disorder, has

diminished resistance to anti-social behaviour,

criminal activity and lying.

I have considered everything put before me in mitigation

even though I do not mention every detail.

If it was not for the long detention of Strowitzki prior to

sentence, I would have sentenced him to fourteen (14) years

imprisonment. However, in view of the said detention, I

will reduce his sentence by three (3) years.

Mr Strowitzki, you are sentenced to eleven (11) years

imprisonment.

It follows that fourteen (14) years imprisonment would also

have been the appropriate sentence for Bock, was it not for

the differentiating facts mentioned above, particularly his

 51

diminished responsibility.

In my view, justice will be done if he now receives the same

sentence as Strowitzki.

Mr Bock, you are sentenced to eleven (11) years

imprisonment.

O'LINN, JUDGE
 52

ON BEHALF OF THE STATE: ADV D F SMALL

ON BEHALF OF ACCUSED NO. 1: ADV H GEIER

Instructed by: Directorate of Legal Aid

ON BEHALF OF ACCUSED NO. 2: ADV L C BOTES

Instructed by: P F Koep Sc Co